In this piece, I am examining contraception from a legal — not a moral — point of view.
In that context, I raise the following questions:
-- Does a married couple have the right to use contraception during their private act of intercourse?
-- Does the government have the right to enter their bedroom to investigate whether they are using a contraceptive?
Those were addressed by the U.S. Supreme Court in Griswold v. Connecticut (1965). There, the executive director of the Planned Parenthood League of Connecticut, and its medical director were convicted of violating Connecticut law for giving married persons advice on how to prevent conception and prescribing a contraceptive.
Justice William O. Douglas wrote the majority opinion declaring the state statute unconstitutional.
"The (cited) cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. ...
"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees. And it concerns a law which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Such a law cannot stand in light of the familiar principle, so often applied by this Court, that a 'governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.' ...
"Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.
"We deal with a right of privacy older than the Bill of Rights ... Marriage is ... intimate to the degree of being sacred. It is an association that promotes a way of life, ... ; a harmony in living, ... a bilateral loyalty... [I]t is an association for as noble a purpose as any involved in our prior decisions."
In an estimable concurrence, Justice Arthur Goldberg wrote, "The Court stated many years ago that the Due Process Clause protects those liberties that are 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.'
"The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments.
"The Ninth Amendment reads, 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.' The Amendment is almost entirely the work of James Madison. ... It was proffered to quiet expressed fears that a bill of specifically enumerated rights could not be sufficiently broad to cover all essential rights and that the specific mention of certain rights would be interpreted as a denial that others were protected.
"A judicial construction that this fundamental right [marriage] is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'"
Few would argue that Griswold did not reach the right result. Even conservative agree with the result -- though they are uncomfortable with the terms of "penumbras" and emanations."
They feel Justice Douglas seems to be saying, " I can't find it anywhere in the language of the first eight amendments, but I know it's there somewhere!"
On the other hand, everybody -- especially conservatives -- seems comfortable with Ninth Amendment justification set forth in the concurring opinion.
Without question, Americans enjoyed the right to marry before the Constitution was adopted. And nobody, ever for a second, thought they were giving up the right to marry (which unquestionably included the right to have intercourse) when they voted to ratify the our Constitution. Except in the mind of a totalitarian, marriage is "fundamental right" and is unquestionably one of the other rights -- "others retained by the people" -- protected by the Ninth Amendment.
Forty-five years ago, the majority never dreamed that the government would want to get into the business of limiting the size of families. But Mr. Justice Goldberg for foresaw that eventuality.
"While it may shock some of my Brethren that the Court today holds that the Constitution protects the right of marital privacy, in my view it is far more shocking to believe that the personal liberty guaranteed by the Constitution does not include protection against such totalitarian limitation of family size, which is at complete variance with our constitutional concepts.
"Yet, if upon a showing of a slender basis of rationality, a law outlawing voluntary birth control by married persons is valid, then, by the same reasoning, a law requiring compulsory birth control also would seem to be valid. In my view, however, both types of law would unjustifiably intrude upon rights of marital privacy which are constitutionally protected."
I can't help but wonder what Justice Goldberg would have said of about government requiring insurers to provide contraceptive coverage.
For those of you who would prefer not to share your bedroom with the government, the Ninth Amendment is your best friend. Griswold makes it "legal" for you (and not the government) to make the "moral" choice to use or not to use contraceptives.
Posted Online: March 27, 2012, 2:25 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Wednesday, March 28, 2012
Thursday, March 8, 2012
U.S. Apologies Aside, Murder Is Not a First Amendment Right
In America, the burning of a Bible is not punishable by death.
Indeed, if it is your copy of the book, you have the right to do so as a matter of symbolic free speech.
Recently, we have seen President Obama and those under him repeatedly and abjectly apologize because American troops in Afghanistan inadvertently burned one or more copies of the Quran.
In a letter sent to Afghan President Hamid Karzai, President Obama expressed his administration's "regret and apologies over the incident in which religious materials were unintentionally mishandled" in Afghanistan.
Then, Peter Lavoy, acting assistant secretary of defense for Asia and Pacific Security Affairs, told the American Muslim community "I come here today to apologize on behalf of the Department of Defense for the incident that took place in Afghanistan this week ... the burnings were done 'unknowingly and improperly.'"
Then, not to be outdone, Gen. John R. Allen, NATO's International Security Assistance Force Commander wrote, "To the noble people of Afghanistan --
"I have ordered an investigation into a report I received ... that ISAF personnel at Bagram Air Base improperly disposed of a large number of Islamic religious materials which included Korans.
"When we learned of these actions, we immediately intervened and stopped them. ...
"We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you -- I promise you -- this was NOT intentional in any way. I offer my sincere apologies... to the president of Afghanistan, ... and most importantly, to the noble people of Afghanistan...."
In the meantime, the world has seen a week of rioting in Afghanistan. More than 30 people have been killed. Hundreds have been wounded. The AP reports "Protesters [note: not "rioters, "murders,"or "terrorists"] angry over Quran burnings by American troops lobbed grenades at a U.S. base in northern Afghanistan and clashed with police and troops in a day of violence that left seven international troops wounded and two Afghans dead." All this by the "noble people of Afghanstan!"
So copies of the Quran, rather than the bible, have been burned. Does that justfy riots that culminate in over 30 murders? Untold woundings? Burning out of towns? I use the word "murders" because when you throw a grenade into a crowd, or intentionally shoot somebody during a riot, or in the back of the head, that is what it is.
If American troops had burned a like number of Bibles, would Christians or Jews have taken to the streets, killed their neighbors and wrecked everything in site? Maybe in 350 A. D. Maybe in the middle ages.
There is a simple problem here. If the burning of a copy of the Quran justifies the murder of one human being, then a principle has been established. If it justifies one murder, then why not two -- or even a million? And if so, are we going to see like conduct from America's Muslim population in the streets of America when the next idiot or malevolent burns a copy of the Quran?
I can understand the president apologizing for our troops doing something insensitive. But why doesn't the president condemn the riots, the murders, the woundings and the chaos going on in Afghanistan? Or are we here in America willing to accept the premise that those of the Muslim faith are free to do anything -- including murder -- any time they perceive their religion to have been slighted?
Newt Gingrich, has said, "There seems to be nothing that radical Islamists can do to get Barack Obama's attention in a negative way and he is consistently apologizing to people who do not deserve the apology of the president of the United States, period."
I feel the same way. I don't think you apologize to murders, to arsonists, to looters or to people who behave like barbarians.
Citizen A may believe that the Bible is God's word, but that doesn't make it so. Citizen B may believe that the the Quran is God's word, but that doesn't make it so.
And if B is justified in killing A because A doesn't believe God wrote the Quran, I see no reason why A is not justified in killing B if B doesn't believe that the men who wrote the Bible were inspired by God.
For two centuries people have come to America to escape such intolerance.
In our country "freedom of religious belief" is an absolute right. You have an absolute right to believe that the Quran is the word of God, and your neighbor has an absolute right to believe that God inspired the men who wrote the Bible. But there are necessarily limits to the "free exercise of religion."
Another of our neighbors may have an absolute right to believe that God wants him to practice cannibalism. But his right to "freely exercise his religion" won't save him from prosecution if he actually kills and eats his neighbor.
Then too, while all of us in America have an absolute First Amendment religious right to believe that a certain book (e. g., the Bible, the Quran, the Torah) is "sacred," all of us also have the right of free speech. For a Muslim, that includes the right to deny that the Bible is sacred, and even to burn his own copy of it as an act of protest or symbolic free speech.
In America, a man's right to believe a book is "God's word" does not give him the right to enforce that belief upon his neighbor. Any American who can't accept the supremacy of our Constitution on these issues, is an American in name only.
Our Constitution simply does not permit killing in the name of religion. Without religious tolerance, we regress to the dark ages, where religious freedom and tolerance were unknown. Those that chose such a world, are but an airline ticket away.
Posted Online: March 07, 2012, 4:51 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
Indeed, if it is your copy of the book, you have the right to do so as a matter of symbolic free speech.
Recently, we have seen President Obama and those under him repeatedly and abjectly apologize because American troops in Afghanistan inadvertently burned one or more copies of the Quran.
In a letter sent to Afghan President Hamid Karzai, President Obama expressed his administration's "regret and apologies over the incident in which religious materials were unintentionally mishandled" in Afghanistan.
Then, Peter Lavoy, acting assistant secretary of defense for Asia and Pacific Security Affairs, told the American Muslim community "I come here today to apologize on behalf of the Department of Defense for the incident that took place in Afghanistan this week ... the burnings were done 'unknowingly and improperly.'"
Then, not to be outdone, Gen. John R. Allen, NATO's International Security Assistance Force Commander wrote, "To the noble people of Afghanistan --
"I have ordered an investigation into a report I received ... that ISAF personnel at Bagram Air Base improperly disposed of a large number of Islamic religious materials which included Korans.
"When we learned of these actions, we immediately intervened and stopped them. ...
"We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you -- I promise you -- this was NOT intentional in any way. I offer my sincere apologies... to the president of Afghanistan, ... and most importantly, to the noble people of Afghanistan...."
In the meantime, the world has seen a week of rioting in Afghanistan. More than 30 people have been killed. Hundreds have been wounded. The AP reports "Protesters [note: not "rioters, "murders,"or "terrorists"] angry over Quran burnings by American troops lobbed grenades at a U.S. base in northern Afghanistan and clashed with police and troops in a day of violence that left seven international troops wounded and two Afghans dead." All this by the "noble people of Afghanstan!"
So copies of the Quran, rather than the bible, have been burned. Does that justfy riots that culminate in over 30 murders? Untold woundings? Burning out of towns? I use the word "murders" because when you throw a grenade into a crowd, or intentionally shoot somebody during a riot, or in the back of the head, that is what it is.
If American troops had burned a like number of Bibles, would Christians or Jews have taken to the streets, killed their neighbors and wrecked everything in site? Maybe in 350 A. D. Maybe in the middle ages.
There is a simple problem here. If the burning of a copy of the Quran justifies the murder of one human being, then a principle has been established. If it justifies one murder, then why not two -- or even a million? And if so, are we going to see like conduct from America's Muslim population in the streets of America when the next idiot or malevolent burns a copy of the Quran?
I can understand the president apologizing for our troops doing something insensitive. But why doesn't the president condemn the riots, the murders, the woundings and the chaos going on in Afghanistan? Or are we here in America willing to accept the premise that those of the Muslim faith are free to do anything -- including murder -- any time they perceive their religion to have been slighted?
Newt Gingrich, has said, "There seems to be nothing that radical Islamists can do to get Barack Obama's attention in a negative way and he is consistently apologizing to people who do not deserve the apology of the president of the United States, period."
I feel the same way. I don't think you apologize to murders, to arsonists, to looters or to people who behave like barbarians.
Citizen A may believe that the Bible is God's word, but that doesn't make it so. Citizen B may believe that the the Quran is God's word, but that doesn't make it so.
And if B is justified in killing A because A doesn't believe God wrote the Quran, I see no reason why A is not justified in killing B if B doesn't believe that the men who wrote the Bible were inspired by God.
For two centuries people have come to America to escape such intolerance.
In our country "freedom of religious belief" is an absolute right. You have an absolute right to believe that the Quran is the word of God, and your neighbor has an absolute right to believe that God inspired the men who wrote the Bible. But there are necessarily limits to the "free exercise of religion."
Another of our neighbors may have an absolute right to believe that God wants him to practice cannibalism. But his right to "freely exercise his religion" won't save him from prosecution if he actually kills and eats his neighbor.
Then too, while all of us in America have an absolute First Amendment religious right to believe that a certain book (e. g., the Bible, the Quran, the Torah) is "sacred," all of us also have the right of free speech. For a Muslim, that includes the right to deny that the Bible is sacred, and even to burn his own copy of it as an act of protest or symbolic free speech.
In America, a man's right to believe a book is "God's word" does not give him the right to enforce that belief upon his neighbor. Any American who can't accept the supremacy of our Constitution on these issues, is an American in name only.
Our Constitution simply does not permit killing in the name of religion. Without religious tolerance, we regress to the dark ages, where religious freedom and tolerance were unknown. Those that chose such a world, are but an airline ticket away.
Posted Online: March 07, 2012, 4:51 pm - Quad-Cities Online
by John Donald O'Shea
Copyright 2012, John Donald O'Shea
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